I noticed that three blog heavyweights — Mark Kleiman, Eugene Volokh, and Glenn Reynolds — have commented on the comparison between Roy Moore’s Ten Commandments crusade in Alabama and Gavin Newsom’s gay marriage initiative in San Francisco. In light of my ongoing interest in Moore, I wanted to weigh in.
At first blush, the comparison may appear to have merit. Moore placed his idolatrous display in the Alabama Judicial Building despite the law’s clear support for church-state separation. Newsom is granting marriage licenses to same-sex couples despite a rather unambiguous prohibition in the state’s constitution.
Moore cited a higher authority in overlooking constitutional law (his faith and desire for a theocracy) and Newsom is citing a higher authority of his own decision (the Equal Protection clause of the 14th Amendment and his passion for civil rights).
Both generated intense criticism for what appeared, at least on the surface, to be a political form of civil disobedience committed by elected officials. Moore’s critics, like me, were shocked by his disregard for established law and Supreme Court precedent. Likewise, Bill O’Reilly earlier this week described San Francisco as “lawless anarchy” because the mayor of San Francisco wasn’t abiding by California’s constitution.
So, does this mean Moore and Newsom are moral equivalents on opposite side of the ideological spectrum? Absolutely not.
The difference lies in their respective commitment to following the rule of law after the controversy has been taken to court.
Moore pulled his stunt and was sued in federal court. Likewise, Newsom’s effort was challenged in federal court. The important difference is that Moore was unconcerned about his trial’s outcome; not because he was confident he would win, but because he had already decided that he could ignore federal court orders with which he disagreed.
After Moore had exhausted the appeals process, and lost before every judge who heard his case, Moore decided that compliance was a matter of his “discretion.” In fact, as the matter heated up, the crux of Moore’s argument — indeed, the entirety of his defense — was that federal courts couldn’t tell him what to do. Ultimately, Moore insisted that he could violate the First Amendment without consequence.
Newsom’s approach is actually the opposite. Yes, his decision to issue marriage licenses to gay couples is in conflict with the relevant provisions of the state constitution. But what separates Newsom and Moore is that Newsom is defending his decision in court — but is willing to abide by the court’s decision. Sure, if he loses, he’ll likely appeal, but if a federal court order is issued directing him to cease issuing these licenses, Newsom will follow the law. In contrast, Moore placed himself above the law.
Until and unless Newsom starts ignoring court orders, the comparison between him and Moore is erroneous.